The Delaware Supreme Court issued a
ruling on December 14, 2017 that endorsed its interpretation of the "Efficient
Market Hypothesis" as a foundation for relying upon market pricing
to define a company’s “fair value” in appraisal proceedings. The
Forum accordingly reported that it would resume
support of marketplace processes instead of judicial appraisal
for its participants' realization of intrinsic value in
opportunistically priced but carefully negotiated buyouts. See:

August 11, 2016, In re ISN Software Corp. Appraisal Litigation
(C.A. No. 8388-VCG): Letter Opinion and Order [page 2: "Since a DCF
is a widely used method of valuation, in reliance on which large
amounts of capital are deployed in corporate markets each year, an
optimist (a.k.a. someone other than a judge presiding in appraisal
trials) might assume that experts hired to examine the same company,
analyzing the same set of financial data, would reach similar
results of present value based on discounted cash flow. In fact, it
is quite common for the petitioner’s expert in an appraisal to reach
a DCF value twice that arrived at by the respondent’s expert
(although never the reverse). In a competition of experts to see
which can generate the greatest judicial skepticism regarding
valuation, however, this case, so far, takes the prize: one of the
Petitioners’ experts opines that fair value is greater than eight
times that implied by the DCF provided by the Respondent’s expert.
Given such a divergence, the best scenario is that one expert, at
the least, is wildly mistaken."]

December 16, 2016,
Merion Capital L.P., et al. v. Lender Processing Services,
Inc. (C.A. No. 9320-VCL): Memorandum Opinion [Court's
independent analysis supports competitively estabilshed pricing
of strategic buyer as fair value; stating (p. 47): "The Merger
was not an MBO. To the contrary, the Company’s management team
believed that Fidelity would not retain them if it acquired the
Company. This gave the management team a powerful personal
incentive not to favor Fidelity and not to seek (consciously or
otherwise) to deliver the Company to Fidelity at an advantageous
price. Instead it gave the management team an additional
incentive to seek out other bidders and create competition for
Fidelity."]

May 26, 2017,
In Re Appraisal of PetSmart, Inc. (C.A. No. 10782-VCS):
Memorandum Opinion [Court relies upon apparently fair
pricing in absence of credible investor valuation (p.3):
"Petitioners have failed to carry their burden of persuasion
that a DCF analysis provides a reliable measure of fair value in
this case. The management projections upon which Petitioners
rely as the bedrock for their DCF analysis are, at best,
fanciful...."; concludes that (p.108): "paid experts have
offered such wildly different opinions" and "I can find no basis
to accept Petitioners’ flawed, post-hoc valuation and ignore the
deal price...."]

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